Date: 19990429
Docket: T-367-99
BETWEEN:
WILLIAM McNIVEN
Plaintiff
- and -
HER MAJESTY THE QUEEN
(Correctional Services of Canada)
Defendant
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
[1] By the motion before me the defendant Crown seeks to strike a statement of claim which claims damages. It appears that the damages are alleged to have resulted from the plaintiff's having been incarcerated in a penitentiary rather than a reformatory, and from the plaintiff being obliged to serve a sentence of thirty-three months rather than twenty-one months.
[2] The grounds alleged for striking are res judicata and/or issue estoppel. The two previous cases mentioned in the motion as amounting to res judicata were in the Ontario Court (General Division). The first case was an application for a writ of certiorari and the second was for a writ of habeas corpus. The place of incarceration and the length of sentence were conclusively dealt with in the Ontario actions which decided against the plaintiff on both issues.
[3] While the parties are the same, and the matters complained of are the same, the relief sought is different. Notwithstanding Palace Shipping Co. v. Caine [1907] A.C. 386, I question whether a criminal proceeding can constitute res judicata as regards civil proceedings arising from the same facts. However, whereas here the facts have been conclusively litigated I believe estoppel per rem judicatum applies. That is to say, because the questions before the Court are substantially the issue decided in the previous proceedings, the plaintiff cannot bring a further action based on those issues.
[4] Therefore, the motion succeeds and the statement of claim is struck out without leave to amend.
"Peter A.K. Giles"
A.S.P.
TORONTO, ONTARIO
April 29, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-367-99
| STYLE OF CAUSE: WILLIAM McNIVEN |
- and -
(Correctional Services of Canada)
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: THURSDAY, APRIL 29, 1999
SOLICITORS OF RECORD: William McNiven
194 Carlton St.
Toronto, Ontario
M5A 2K8
On His Own Behalf
Morris Rosenberg
Deputy Attorney General
of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 19990429
Docket: T-367-99
Between:
Plaintiff
- and -
(Correctional Services of Canada)
Defendant
REASONS FOR ORDER
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